Mazier v. Signature Pools, Inc. ( 2015 )

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ALEX MAZIER ET AL. v. SIGNATURE POOLS, INC.
(AC 36283)
Gruendel, Lavine and Bishop, Js.
Argued February 5—officially released August 4, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Povodator, J.)
Stephan E. Seeger, with whom, on the brief, was Igor
G. Kuperman, for the appellant (defendant).
Michael J. Barnaby, for the appellees (plaintiffs).
Opinion
BISHOP, J. In this breach of contract and negligence
action involving a dispute between the plaintiff home-
owners and the defendant swimming pool contractor,
the defendant, Signature Pools, Inc., appeals from the
judgment rendered upon a jury verdict in favor of the
plaintiffs, Alex Mazier and Giselle Mazier, for
$62,142.86.1 On appeal, the defendant claims that the
trial court, Povodator, J., incorrectly (1) denied certain
of the defendant’s requests to charge; (2) denied a
motion in limine regarding the law of the case; (3)
permitted parol evidence where the language of the
contract was clear and unambiguous; (4) denied the
defendant’s motion for a directed verdict; (5) denied
the defendant’s request to charge on professional negli-
gence; and (6) denied the defendant’s motion for a mis-
trial. We affirm the judgment.
At trial, the jury reasonably could have found the
following facts. On March 22, 2007, the parties entered
into a contract for the defendant to construct an in-
ground swimming pool at the plaintiffs’ residence in
Wilton (town). Although the contract contained multi-
ple clauses, the following provisions are particularly
germane to the parties’ ultimate dispute and to our
resolution of this appeal:
‘‘APPLICATION FOR PERMIT: If a permit authoriza-
tion is part of this Agreement, [the defendant] shall
attempt to obtain the building permit for you for the
construction of the pool. If a building permit cannot be
obtained by [the defendant], you shall attempt to obtain
the permit at your expense. If the permit cannot be
obtained, this Agreement will be canceled and any
deposit refunded less any costs incurred by [the defen-
dant]. You shall be responsible for obtaining any zoning
variances, wetland approvals, coastal area management
approvals, changes, plot plans, test borings, percolation
tests, certificates of occupancy or special items
required for [the defendant’s] performance of the work.
You shall pay all costs and fees in connection with
obtaining/doing any of them. You shall be responsible
for all required variances, surveys, and associated per-
mits and fees. . . .
‘‘POOL LOCATION: You represent that you have title
to the property that the pool is to be located on. You
also represent that the access way and pool location
is within your property lines and clear of setbacks,
wetlands restrictions, underground installation and
overhead power lines and that the equipment and pool
location complies with all applicable zoning laws.
‘‘You also represent that the pool location is on origi-
nal ground and that it will not interfere with support of
existing or proposed structures. You also acknowledge
that you directed the location of the pool and other
improvements and you shall not hold [the defendant]
liable for any alleged incorrect location of the pool.
You will indemnify, hold harmless and defend [the
defendant] from any claim, loss or expense (including
reasonable attorneys’ fees) arising by reason of trespass
and/or damage by [the defendant] resulting from your
designation of pool location or access routes or by
reason of any work by you or others.’’
Before entering into the contract with the defendant,
the plaintiffs had purchased their home from Carmine
Tomas, who had constructed it on speculation. After
purchasing the property, and upon deciding to enhance
it with a pool, the plaintiffs sought the advice of Tomas
and his spouse, Tracy Castelli. The plaintiffs retained
Castelli to assist them in the selection of the pool con-
tractor, in the process of determining the placement
and installation of the pool, and for landscaping the
property. Pursuant to her role as the plaintiffs’ advisor
and agent, Castelli prepared a tissue sketch to show
the pool’s general dimensions and location.2
The jury heard evidence, as well, that Tomas, acting
on behalf of the plaintiffs, submitted an application
to the town for approvals, including zoning, for the
construction of the pool and its location. With the appli-
cation, Tomas submitted a plot plan that had been devel-
oped by a land surveyor at the behest of the plaintiffs.
This plan showed the pool’s proposed location, includ-
ing its distance from adjacent property lines. The town
approved the plaintiffs’ plans and application on March
29, 2007. The plot plan submitted on behalf of the plain-
tiffs, together with their application, became part of the
town’s building permit file related to the pool. Once
the approvals had been obtained, the defendant, on
April 11, 2007, filed an application for a building permit
with the town, making reference in the application to
the town’s prior zoning approval for the pool construc-
tion. Castelli, on behalf of the plaintiffs, provided the
defendant with a copy of the plot plan filed with the
town.3
Thereafter, the defendant constructed the pool in a
location consistent with the sketch it asserted Castelli
had provided to the defendant and in accord with the
location of the stakes the defendant had utilized to
mark the pool’s intended location.
Unbeknownst to the parties, the pool was not situated
in accord with the plot plan but, instead, it was located
closer to an adjacent property line than required by the
setback provisions of the town’s zoning regulations.
During the spring of 2008, the town informed the plain-
tiffs that the pool had been situated in a location on
the property that resulted in a violation of the town’s
zoning regulations regarding the required minimum set-
backs from an adjacent property line. Unable to obtain
a variance and subject to a subsequent cease and desist
order from the town, the plaintiffs, on January 6, 2011,
entered into a stipulation with the town, agreeing that
the pool was in an improper location, agreeing to pay
the town’s legal fees, and agreeing to relocate the pool.
In December, 2011, the plaintiffs commenced this action
which resulted, following a verdict for the plaintiffs, in
an award of $62,142.86 for the plaintiffs against the
defendant. This appeal followed.
I
The defendant claims that the court incorrectly
denied its request to charge on the ‘‘exculpatory provi-
sion’’ in the contract. The defendant claims, as well,
that the court incorrectly instructed the jury that the
provision should be ignored and that the plaintiffs’
acknowledgements regarding their responsibility for
the location of the pool were ‘‘ ‘ambiguous’ . . . .’’ The
defendant bases this argument on its assertion that the
contract between the parties contained a clear, precise
and unambiguous exculpatory provision in favor of the
defendant, and on the ground that the contract con-
tained a provision through which the plaintiffs acknowl-
edged that they bore the responsibility for the location
of the pool and that they did in fact direct its placement.
Indeed, the contract between the parties contained
an ‘‘exculpatory provision’’ that included both an
acknowledgement by the plaintiffs that they directed
the location of the pool, and language purporting to
indemnify and hold harmless the defendant from any
claims relating to the pool’s siting. As noted, the first
sentence, the acknowledgement of responsibility,
reads: ‘‘You also acknowledge that you directed the
location of the pool and other improvements and you
shall not hold [the defendant] liable for any alleged
incorrect location of the pool.’’ The second sentence,
containing the indemnification and hold harmless provi-
sion, reads: ‘‘You will indemnify, hold harmless and
defend [the defendant] from any claim, loss or expense
(including reasonable attorneys’ fees) arising by reason
of trespass and/or damage by [the defendant] resulting
from your designation of pool location or access routes
or by reason of any work by you or others.’’
In regard to the ‘‘exculpatory provision’’ as a whole,
the defendant submitted the following request to
charge: ‘‘You’ve heard evidence regarding contract
between the [p]laintiff and the [d]efendant in this case.
If you find that the contract in this case expressly and
unambiguously purports to release the [defendant] from
prospective liability for the incorrect location of the
pool and that the terms of the contract are unambigu-
ous, understandable, clear and coherent and that an
ordinary person of reasonable intelligence would under-
stand that, by signing the agreement, he or she was
releasing the [defendant] from liability for the incorrect
location of the pool, then you must find that the [d]efen-
dant is not liable to the [p]laintiffs for the losses and
damages arising from the incorrect location of the
pool.’’
The court did not give the defendant’s requested
charge. Instead, the court gave separate and distinct
instructions on each of the two sentences contained in
this part of the contract. On appeal, the defendant
argues that both of these instructions were in error.
We begin by setting forth the legal principles and
standard of review that guide our analysis. ‘‘Our stan-
dard of review regarding properly preserved claims of
improper jury instructions is well settled. In reviewing
claims of instructional [impropriety], we seek to deter-
mine whether it was . . . reasonably possible that the
jury was misled by the trial court’s instructions . . . .
[T]he charge to the jury is not to be critically dissected
for the purpose of discovering possible inaccuracies of
statement, but it is to be considered rather as to its
probable effect upon the jury in guiding [it] to a correct
verdict in the case. . . . The charge is to be read as a
whole and individual instructions are not to be judged
in artificial isolation from the overall charge. . . . The
test to be applied . . . is whether the charge, consid-
ered as a whole, presents the case to the jury so that
no injustice will result. . . . As long as [the instruc-
tions] are correct in law, adapted to the issues and
sufficient for the guidance of the jury . . . we will not
view the instructions as improper. . . . Although [a]
request to charge which is relevant to the issues of [a]
case and which is an accurate statement of the law
must be given . . . [a] refusal to charge in the exact
words of a request . . . will not constitute error if the
requested charge is given in substance. . . . Thus,
when the substance of the requested instructions is
fairly and substantially included in the trial court’s jury
charge, the trial court may properly refuse to give such
instructions.’’ (Citation omitted; internal quotation
marks omitted.) State v. McCarthy, 105 Conn. App. 596,
617–18, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944
A.2d 983 (2008). With this standard in mind, we review
the court’s instructions on the two sentences sepa-
rately.
A
As to the first sentence, the court stated: ‘‘The con-
tract also contains the following language. ‘You also
acknowledge that you directed the location of the pool
and other improvements and shall not hold [the defen-
dant] liable for any alleged incorrect location of the
pool.’
‘‘In the context of this case I instruct you that the
language is ambiguous. The language could refer to
errors in location caused by misdirection by the prop-
erty owner, plaintiffs. It could refer to errors in location
caused by the contractor. It could refer to errors in
location for which neither the property owner nor the
contractor is at fault. And it could refer to errors in
location for which both the property owner and the
contractor [are] at fault.
‘‘Resolution of this ambiguity is entrusted to you, the
goal being to determine and enforce the likely intent of
the parties. In trying to resolve this ambiguity, however,
there is a rule which you may wish to take into account.
If you are unable to determine the intent of the parties
from the language of the surrounding circumstances,
you may construe that language against [the] defendant
. . . the party who drafted the contract.
‘‘This is because the party drafting the language is
the one who had the best opportunity to make clear
the intended meaning of the provision. However, you
should not construe the contract against [the] defen-
dant, the party who drafted the contract, if it leads to
a result that was not intended by the parties, or if it
leads you to a result that is not a reasonable meaning
of the contract.’’
On the basis of our review of the record, we believe
the court’s instruction on the first sentence of this part
was correct on the law and appropriate to the circum-
stances. At the outset, we note that our jurisprudence
is clear that whether language of a contract is clear
and unambiguous presents a question of law. State v.
Dzwonkowski, 151 Conn. App. 81, 93, 94 A.3d 657, cert.
denied, 314 Conn. 906, 100 A.3d 401 (2014). Thus, it
was proper for the court to make the determination as
to whether the contract was ambiguous. And, because
that determination entails the resolution of a legal ques-
tion, our review of the court’s determination is plenary.
See Tobet v. Tobet, 119 Conn. App. 63, 68, 986 A.2d 329
(2010). ‘‘Contract language is unambiguous when it has
a definite and precise meaning . . . concerning which
there is no reasonable basis for a difference of opinion
. . . . In contrast, an agreement is ambiguous when its
language is reasonably susceptible of more than one
interpretation.’’ (Internal quotation marks omitted.)
Giordano v. Giordano, 127 Conn. App. 498, 503, 14 A.3d
1058 (2011).
Here, the record amply supports the court’s determi-
nation that the sentence in question is subject to more
than one interpretation. At trial, the plaintiffs did not
deny that they were responsible for situating the pool.
Indeed, they offered testimony, which the jury was enti-
tled to credit, that they commissioned the plot plan,
submitted it to the town, and gave the plot plan to the
defendant to set the pool’s location. The defendant, on
the other hand, claimed that the plaintiffs gave it a tissue
sketch from which the defendant marked by stakes the
pool’s dimensions and location. The defendant offered
testimony, as well, that Castelli, on behalf of the plain-
tiffs, approved the defendant’s outline of the pool’s
intended location. The interpretation of this sentence
regarding the plaintiffs’ role in directing the pool’s loca-
tion depended, in large measure, on the jury’s assess-
ment of this testimony. In its instructions to the jury,
the court fully and properly explained that the language
is subject to multiple interpretations. We therefore con-
clude that there was no mistake in this instruction.
B
As to the second sentence, containing the hold harm-
less and indemnification provision, the court instructed
the jury to disregard it. The court stated: ‘‘The language
is, you will and indemnify and hold harmless and defend
[the defendant] from any claim, loss or expense, includ-
ing reasonable attorney’s fees, arising by reason of tres-
pass and/or damage by [the defendant] resulting from
your designation of pool location or access routes or
by reason of any work by you or others.
‘‘I instruct you that you are to disregard the language
that I have just quoted. It is inapplicable to this case,
and you must not consider that language in applying
the contract to the facts of this case.’’
Later, after the jury had begun its deliberations, the
jury had a question regarding the ‘‘hold harmless’’ lan-
guage. When the jury was brought back into the court-
room, the court stated: ‘‘All right, the question is,
clarification regarding what part of [the] contract were
we to ignore. And then it says in parenthesis—in quota-
tion marks—notwithstanding clause.
‘‘What I instructed you is on page 6, I believe, of
the contract; in a section captioned pool location the
following language appears.’’ The court then read the
contract’s indemnification and hold harmless language
to the jury and concluded: ‘‘That is the language you
are to ignore. It has no applicability to this case. There
is the risk that you might have thought it does, and
therefore that is why I specifically said it doesn’t have
any bearing. You are to ignore that language.’’
On appeal, the defendant now claims that this instruc-
tion was legally incorrect.4 The plaintiffs, in response,
and on appeal for the first time, argue that the exculpa-
tory language in the contract violates public policy as
enunciated in General Statutes § 52-572k.5 The defen-
dant, in turn, argues that the provisions of § 52-572k
are not applicable because the plaintiffs, in this
instance, make no claim for bodily injury or damage
to property.
Both arguments are wide of the mark regarding the
defendant’s instructional claim.6 From a cursory review
of the hold harmless and indemnification language in
the context of the entire agreement, it is clear that the
hold harmless and indemnification language does not
bear on a dispute between these parties under the con-
tract. Rather, the language in question contemplates the
potential for a complaint made against the defendant by
a third party for the defendant’s siting of the pool as
directed by the plaintiffs, in which case, the provision
calls for the homeowner to step into the shoes of the
defendant to defend and hold the defendant harmless
against such a claim. In discussing the nature of an
indemnification agreement generally, our Supreme
Court has opined: ‘‘In Connecticut, there are cases that
are instructive when determining when an action to
enforce an indemnity contract accrues. The logic and
rationale underlying our indemnity case law are based
on the premise that an action for indemnification is one
in which one party seeks reimbursement from another
party for losses incurred in connection with the first
party’s liability to a third party.’’ Amoco Oil Co. v. Lib-
erty Auto & Electric Co., 262 Conn. 142, 148, 810 A.2d
259 (2002).7 In the context of this agreement, the record
supports the reasonableness of the court’s view that
the indemnification and hold harmless language in this
paragraph of the agreement did not relate to any poten-
tial dispute between the plaintiffs and the defendant.
Accordingly, its instruction to the jury to disregard this
provision was legally correct.
II
Next, the defendant claims that the court incorrectly
declined to follow the law of the case established earlier
in conjunction with a hearing on the plaintiffs’ applica-
tion for a prejudgment remedy. The following additional
facts are relevant to our consideration of this issue. By
pleading dated September 29, 2010, the plaintiffs sought
a prejudgment remedy against the defendant in the
amount of $385,875. After a hearing, the court, Tobin,
J., denied the application. In doing so, the court com-
mented, in its written memorandum of decision, that
the plaintiffs had failed to adduce sufficient evidence
to establish probable cause that they would succeed in
either their negligence or contract claims against the
defendant.8 As to the negligence claim, the court
observed that the parties had a factual dispute as to
whether the plaintiffs’ representative had provided a
copy of the plot plan to the defendant prior to the
construction of the pool, with the plaintiffs claiming
that it had been given to the defendant and the defen-
dant denying its receipt. On this score, the court found
the defendant’s testimony to be more credible.
As to the breach of contract claim, the court stated:
‘‘The agreement between the parties is not ambiguous.
The agreement clearly and unequivocally assigned
responsibility for the location of the pool to the plain-
tiffs.’’ The court said, as well, concerning the contract
claim: ‘‘A second, more plausible, contract theory is
that the defendant breached the agreement by failing
to build the pool in the location designated by the plain-
tiffs. There was, however, no evidence that the plaintiffs
themselves gave any directions to the defendant as to
the location of the pool other than to state it should
be built behind their residence. In her testimony, Ms.
Tomas denied ever designating or approving the loca-
tion of the pool personally. She testified that she had
given [Bruno] Iacono a copy of the plot plan that Tom
Quinn had prepared for the plaintiffs at her request
. . . . That plot plan depicts the location of the pool
as more than fifty feet from the plaintiffs’ property line.
In the absence of any other evidence showing that the
plaintiffs or their agent(s) designated a pool location,
the plaintiffs’ claim of breach of contract stands or falls
on the question of whether a copy of exhibit 3 was
given to the defendant prior to the construction of the
pool.’’ (Citation omitted; footnote omitted.) On this
point, the record is clear that Judge Tobin was unper-
suaded by the plaintiffs’ evidence. The court stated: ‘‘In
summary, the court found Mr. Iacono to be the more
credible witness with respect to the events which led
to the placement of the pool.9 The court finds that the
plaintiffs have failed to establish probable cause to sus-
tain the validity of any potential breach of contract
claims against the defendant.’’ (Footnote added.)
As to the negligence count, the court noted: ‘‘[T]he
plaintiffs claim that the defendant performed its work
under the contract in a manner that was not ‘workman-
like’ or ‘in accordance with industry standards.’ At the
hearing, the plaintiffs produced no evidence of industry
standards or from which the court could find probable
cause that the defendant performed its responsibilities
under the contract in an ‘unworkmanlike manner.’ The
plaintiffs next argue that the evidence shows that the
defendant was aware of the intended location of the
pool and yet negligently constructed it within a required
backyard setback. This assertion would require the
court to accept the testimony of Ms. Tomas and disre-
gard that of Iacono. As noted previously, the court found
Iacono’s testimony to be more credible. Accordingly,
the court cannot find that the plaintiffs have established
probable cause to sustain the validity of their negligence
claims against the defendant.’’
From this language, the defendant asserts that Judge
Tobin established, as the law of the case, that the lan-
guage of the contract was clear and unambiguous, and
that, in order to prevail on their negligence claim, the
plaintiffs were required to adduce expert testimony
regarding the standard of care for pool builders. To
advance its law of the case claim, the defendant, on
October 28, 2013, filed a pretrial motion in limine in
which the defendant sought an order precluding the
plaintiffs from introducing trial evidence that would,
inter alia: ‘‘(4) show or tend to show that the written
agreement between the parties is ‘ambiguous’; (5) show
or tend to show that [d]efendant was obligated or
required under the written agreement to ensure that
the pool was built in a location which conformed with
the requirements of local land use regulations; (6) con-
tradict that under the written agreement [d]efendant’s
responsibilities with respect to location of the pool
were limited to locating the pool in accordance with
[p]laintiffs’ direction; (7) show or tend to show that
the parties modified or agreed to modify their written
agreement . . . .’’ The defendant claims that, in deny-
ing this motion in limine, the court, Povodator, J., vio-
lated the law of the case doctrine.
‘‘As a preliminary matter, we set forth the applicable
standard of review with respect to evidentiary claims.
The trial court’s ruling on the admissibility of evidence
is entitled to great deference. . . . [T]he trial court has
broad discretion in ruling on the admissibility . . . of
evidence . . . [and its] ruling on evidentiary matters
will be overturned only upon a showing of a clear abuse
of the court’s discretion. . . . We will make every rea-
sonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse
of discretion. . . . Moreover, evidentiary rulings will
be overturned on appeal only where there was an abuse
of discretion and a showing by the defendant of substan-
tial prejudice or injustice.’’ (Internal quotation marks
omitted.) Sutcliffe v. FleetBoston Financial Corp., 108
Conn. App. 799, 804–805, 950 A.2d 544 (2008).
‘‘The law of the case doctrine provides that [w]here
a matter has previously been ruled upon interlocutorily,
the court in a subsequent proceeding in the case may
treat that decision as the law of the case, if it is of the
opinion that the issue was correctly decided, in the
absence of some new or overriding circumstance. . . .
A judge is not bound to follow the decisions of another
judge made at an earlier stage of the proceedings, and
if the same point is again raised he has the same right
to reconsider the question as if he had himself made
the original decision. . . . [O]ne judge may, in a proper
case, vacate, modify, or depart from an interlocutory
order or ruling of another judge in the same case, upon
a question of law.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Henderson v.
Lagoudis, 148 Conn. App. 330, 338–39, 85 A.3d 53
(2014). ‘‘We consider whether a court correctly applied
the law of the case doctrine under an abuse of discretion
standard.’’ Perugini v. Giuliano, 148 Conn. App. 861,
879, 89 A.3d 358 (2014).
Adherence to the law of the case doctrine is not
mandatory. Rather, the doctrine, when invoked, is a
habit of practice impelled by prudence, comity and judi-
cial economy. As our Supreme Court has stated: ‘‘The
law of the case is not written in stone but is a flexible
principle of many facets adaptable to the exigencies of
the different situations in which it may be invoked. . . .
In essence it expresses the practice of judges generally
to refuse to reopen what has been decided and is not
a limitation on their power.’’ (Citation omitted.) Breen
v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).
Accordingly, to the extent Judge Povodator may have
permitted evidence regarding the meaning of the sub-
ject contract language or may have adopted a different
view of the clarity of this provision of the contract, he
acted within his discretion and violated no binding tenet
of law.
III
The defendant next claims that the court incorrectly
permitted the plaintiffs to introduce parol evidence as
to the responsibility for placement of the pool where
the contract clearly and unambiguously allocated this
responsibility to the plaintiffs. Through a pretrial
motion in limine dated October 28, 2013, the defendant
sought an order precluding the plaintiffs from introduc-
ing any evidence or permitting any argument that would
contradict or vary the terms of the written contract
between the parties. Specifically, the motion refers to
the provision in the contract allocating the responsibil-
ity for the location of the pool and for obtaining zoning
permits to the plaintiffs. In response to this claim, the
plaintiffs assert that their evidence as to the plaintiffs’
and defendant’s activities regarding the location of the
pool was not offered to vary or contradict the terms of
the contract but, rather, to demonstrate the manner in
which the plaintiffs fulfilled their obligation under the
contract. We agree with the plaintiffs.
‘‘[T]he parol evidence rule is not an exclusionary rule
of evidence . . . but a rule of substantive contract law
. . . to which we afford plenary review.’’ (Internal quo-
tation marks omitted.) Weiss v. Smulders, 313 Conn.
227, 248, 96 A.3d 1175 (2014). As noted by the defendant,
the parol evidence rule requires that ‘‘[w]hen two par-
ties have made a contract and have expressed it in a
writing to which they have both assented as the com-
plete and accurate integration of that contract, evi-
dence, whether parol or otherwise, of antecedent
understandings and negotiations will not be admitted
for the purpose of varying or contradicting the writing.’’
(Internal quotation marks omitted.) Greene v. Scott, 3
Conn. App. 34, 36, 484 A.2d 474 (1984). Although we
agree that the defendant has properly characterized the
parol evidence rule, the record does not support the
defendant’s claim that testimony adduced by the plain-
tiffs in fact violated the rule. To the contrary, a fair
reading of the record reveals that the plaintiffs offered
testimony to demonstrate the manner in which they
fulfilled their obligations under the contract to deter-
mine the location of the pool. As noted, the plaintiffs
claimed that they had a plot plan prepared for the siting
of the pool, they submitted this plan for approval to
the town, and they gave a copy of the plot plan to the
defendant for use in locating the pool. At trial, the
defendant denied that it had been given the plot plan
and claimed, rather, that it had instead been given a
sketch provided by the plaintiffs’ agent, Castelli, and
that this sketch was used to stake out the location of
the pool, which was thereafter approved by Castelli.
Because the plaintiffs offered the testimony at issue in
order to demonstrate the manner in which they directed
the location of the pool, it cannot fairly be claimed that
this testimony was intended to vary or contradict the
terms of the contract that required them to direct the
pool’s location.
IV
Next, the defendant claims that the court incorrectly
denied its motion for a directed verdict where the plain-
tiffs failed to adduce any evidence regarding the stan-
dard of care for a pool builder and where the contract
contained an exculpatory provision releasing the defen-
dant from any liability for the placement of the pool.
Put differently, this claim involves two issues: (1)
whether the plaintiffs should have been required to
adduce testimony regarding the standard of care for
pool builders; and (2) whether the defendant was enti-
tled to a directed verdict on the basis of an exculpatory
provision in the contract. We deal with each claim in
turn.
We begin by setting forth the appropriate legal frame-
work. ‘‘The standards of review for the denial of a
motion for a directed verdict and denial of a motion to
set aside a verdict are the same. . . . Ordinarily, [t]he
proper appellate standard of review when considering
the action of a trial court granting or denying a motion
to set aside a verdict . . . [is] the abuse of discretion
standard. . . . [O]ur review of a trial court’s refusal to
direct a verdict . . . takes place within carefully
defined parameters. We must consider the evidence,
including reasonable inferences which may be drawn
therefrom, in the light most favorable to the parties who
were successful at trial . . . giving particular weight to
the concurrence of the judgments of the judge and the
jury, who saw the witnesses and heard the testimony
. . . . Directed verdicts are not favored. . . . As a gen-
eral rule, the decision to set aside a verdict entails the
exercise of a broad legal discretion . . . that, in the
absence of clear abuse, we shall not disturb. . . . We
note further that, to the extent that the claims raise
questions of law, our review is plenary.’’ (Citations omit-
ted; internal quotation marks omitted.) Tomick v.
United Parcel Service, Inc., 157 Conn. App. 312, 324–25,
A.3d (2015); see also Bridgeport Harbour Place
I, LLC v. Ganim, 131 Conn. App. 99, 153, 30 A.3d 703
(applying plenary review where questions of law were
raised by defendant, claiming that court improperly
denied motion for directed verdict and to set aside
verdict), cert. granted on other grounds, 303 Conn. 904,
905, 31 A.3d 1179, 1180 (2011) (appeals withdrawn Janu-
ary 26 and 27, 2012). Furthermore, ‘‘[i]f contract lan-
guage is definitive of the parties’ intent, then the
interpretation of the language becomes a question of
law for the court. . . . Our review, in such a case, is
plenary.’’ (Internal quotation marks omitted.) Watkins
v. Watkins, 152 Conn. App. 99, 105, 96 A.3d 1264 (2014).
A
We first review the defendant’s claim that the court
should have directed a verdict in favor of the defendant
because the plaintiffs failed to adduce any evidence of
the standard of care applicable to pool builders in order
to establish the existence of the defendant’s duty to
the plaintiffs.
It is an elementary precept of tort law that in order
to prove a case founded on negligence, a plaintiff must
demonstrate that the defendant had a duty of care to
the plaintiff and that the defendant breached that duty,
causing injury to the plaintiff. See Utica Mutual Ins.
Co. v. Precision Mechanical Services, Inc., 122 Conn.
App. 448, 454, 998 A.2d 1228, cert. denied, 298 Conn.
926, 5 A.3d 487 (2010). The scope of a party’s duty is
generally referred to as the standard of care. Id. When
a case involves resolution of an issue of ordinary negli-
gence, normally, expert testimony is not required to
establish the applicable standard of care. Rather, the
jury is to apply the standard of the reasonably prudent
person in the same circumstances. See Cammarota v.
Guerrera, 148 Conn. App. 743, 750, 87 A.3d 1134, cert.
denied, 311 Conn. 944, 90 A.3d 975 (2014). On the other
hand, expert testimony to inform a jury of the standard
of care is required when the question involved goes
beyond the field of knowledge and experience of ordi-
nary fact finders. See Ciarlelli v. Romeo, 46 Conn. App.
277, 283, 699 A.2d 217, cert. denied, 243 Conn. 929, 701
A.2d 657 (1997), and cases cited therein. ‘‘The court’s
determination of whether expert testimony was needed
to support the plaintiff’s claim of negligence against the
defendant was a legal determination, and, thus, our
review is plenary.’’ (Internal quotation marks omitted.)
Brye v. State, 147 Conn. App. 173, 181, 81 A.3d 1198
(2013).
In the case at hand, the standard of care involved
the defendant’s placement of the pool and whether the
defendant was negligent in situating the pool where it
was constructed. As noted in this regard, the plaintiffs
adduced two trains of evidence, each bearing on the
question. The plaintiffs offered testimony, which the
jury was entitled to credit, that the defendant was given
a copy of the plot plan filed with the town and which
showed the proper location for the pool. The plaintiffs
also adduced testimony that the plot plan had been
filed with the town and that all applicants, professionals
and homeowners alike, were required to act in confor-
mity with the terms of plot plans on file with the town
in the performance of authorized work. In this regard,
it is noteworthy that, in submitting an application for a
building permit, the application signed by the defendant
contained the following provision: ‘‘The undersigned
owner or authorized agent hereby . . . (3) warrants
that this building shall be located the proper distance
from all street lines, side yard lines and required dis-
tances from all other zones and is located in a zone in
which this building [and] its use is allowed [and] (4)
warrants that this application and all maps and location
surveys submitted in connection herewith fully and
accurately describe the premises and structures
thereon and any conditions to approval of the same by
the Wilton Planning and Zoning Commission . . . .’’
At trial, the plaintiffs adduced evidence that the plot
plan they had prepared and that had been approved by
the Wilton Planning and Zoning Commission was made
part of the plaintiffs’ application file with the town. On
this point, the plaintiffs alleged that the defendant’s
failure to follow the approved plot plan for the construc-
tion of the pool constituted a negligent failure to follow
the rules and protocols generally binding on all appli-
cants, lay people or contractors. Given the nature of
those claims, we cannot find that the court mistakenly
failed to require the plaintiffs to establish, through
expert testimony, the standard of care for an activity
required of all applicants.10 In sum, the jury was able to
determine, using common sense and ordinary wisdom,
whether the defendant was negligent in not situating
the pool as indicated in the plot plan given to it by the
plaintiffs’ agent or in not following the dictates of the
plan it knew or should have known was an integral part
of the town’s approval. This assessment did not require
specialized knowledge beyond the understanding of
average jurors. On this evidence, the jury was compe-
tent to determine whether the defendant owed a duty
of care to situate the pool as specified in the plot plan
approved by the town and in its possession.11
B
The second reason the defendant claims the court
should have granted a directed verdict relates to a provi-
sion in the parties’ contract, which, the defendant
claims, exonerates it from any liability for the wrongful
placement of the pool. As noted, the parties’ contract
included a provision purporting to absolve the defen-
dant from any liability for any alleged incorrect location
of the pool: ‘‘You also acknowledge that you directed
the location of the pool and other improvements and
you shall not hold [the defendant] liable for any alleged
incorrect location of the pool. You will indemnify, hold
harmless and defend [the defendant] from any claim,
loss or expense (including reasonable attorneys’ fees)
arising by reason of trespass and/or damage by [the
defendant] resulting from your designation of pool loca-
tion or access routes or by reason of any work by you
or others.’’ The defendant claims that, on the basis of
this contract language, it was relieved of any liability
for the improper placement of the pool. As discussed
in part I A of this opinion, the trial court found ambiguity
in that portion of the ‘‘exculpatory’’ provision that pur-
ported to relieve the defendant of responsibility for the
improper location of the pool and, thus, its applicability
was properly within the scope of the jury’s fact-finding
responsibility. As to that portion of the clause con-
taining the hold harmless and indemnification language,
the record reflects that the court found those provisions
inapplicable to the dispute between the parties. See
part I B of this opinion. For these reasons, we find no
fault with the court’s determinations in this regard. For
the same reasons, we believe the court correctly denied
the defendant’s motion for a directed verdict.12
V
The defendant next claims that the court incorrectly
failed to charge the jury on professional negligence
and, specifically, that the plaintiffs were required to
introduce evidence of the standard of care applicable
to pool builders. Having already assessed this issue in
response to the defendant’s claim regarding the court’s
failure to grant a directed verdict, we need not repeat
ourselves. In sum, we disagree with the defendant’s
claim that, in order to hold the defendant liable for
negligence, the plaintiffs should have been required to
adduce standard of care evidence on the ground that
pool building requires specialized knowledge and abili-
ties. Given the specific claims of this case, which are
that the defendant failed to follow the plot plan given
to it by the plaintiffs’ agent and, in the alternative, that
the defendant failed to adhere to the terms of the plot
plan it knew or should have known was on file with
the town, we do not find any basis for the claim that
the jury was required to hear standard of care evidence
to determine whether the defendant performed negli-
gently to the plaintiffs’ detriment. Because there was
no need for standard of care evidence, there was no
reason for a parallel charge.
VI
The defendant’s final claim is that the court should
have granted a mistrial ‘‘where the trial court twice
instructed the jury to correct their answers to the jury
interrogatories, and where the instructions specifically
told the jury what the correct answers to said interroga-
tories should be.’’ We disagree.
The following additional facts are relevant to our
consideration of this issue. During its final instructions
and while discussing the issue of damages, the court
instructed the jury that even though the plaintiffs had
made both contract and negligence claims, the plaintiffs
could recover only once for their losses. The court
stated: ‘‘Plaintiffs cannot recover more than once for
the same loss, even if they prevail on more than one
cause of action. I have provided you with a verdict
form and will go through it with you to make sure you
understand where it appears that there is a potential
for the plaintiff to recover more than once for the same
loss.’’ The court further stated: ‘‘I am submitting inter-
rogatories, which will assist you in reaching a verdict
and calculating the amount of damages, if any, to be
awarded. . . .
‘‘The interrogatories direct you to enter final breach
of contract damages and negligence damages on the
plaintiffs’ verdict form . . . if you conclude that [the]
plaintiff is entitled to recover from [the] defendant
under one or both theories.
‘‘You will note that there is a table in the interrogato-
ries form after the questions about breach of contract
and after the questions about negligence. Ultimately,
[the] plaintiffs will not be allowed to recover more than
once for any given injury. I am allowing you to enter
the information under one or both theories if you find
that [the] plaintiffs have proven either or both theories,
and if necessary, I will make appropriate adjustments
to avoid a double recovery as to any claimed element
of injury or damages.’’
The interrogatories submitted to the jury included
several questions regarding liability and damages.
Although the tenor of the answers clearly indicated a
verdict in favor of the plaintiffs, as did the jury’s use
of the plaintiffs’ verdict form, the jury’s answers
revealed, as well, certain inconsistencies. When the jury
first indicated that a verdict had been reached and the
verdict and interrogatory forms had been given to the
court, the court responded: ‘‘All right, there is a problem
with these forms. What you apparently did is divide it
by two and put it in twice on the third form.’’13 To this
comment, the jury foreperson responded: ‘‘Yes.’’ The
court responded: ‘‘That is not the proper way to do it.
You need—if in fact your verdict is for that full amount,
put it in twice. I will make sure that there is no duplica-
tion.’’ The jury foreperson then said: ‘‘Okay. We can do
that, Your Honor.’’
The jury then returned to the jury room until, once
again, the court was notified that the jury had a verdict.
When the jury returned for the second time, and once
the verdict and interrogatory forms were handed to the
court, another discrepancy was discovered by the court,
this one involving one of the interrogatories in which
the jury had marked a box with an ‘‘X’’ indicating that
the language in the contract purporting to absolve the
defendant of liability for the placement of the pool
would relieve the contractor of legal responsibility. The
court stated: ‘‘There is a problem. Ladies and gentlemen,
I’m sorry, but there is a problem. There is an inconsis-
tency between—in what you’ve done. It could be that
you misunderstood the form, but there is a problem in
that you indicated that errors in the location that were
the fault of the contractor would relieve the contractor
of responsibility. And, you are finding against the con-
tractor. So, that is inconsistent.
‘‘I don’t think we have time to send you back today
to correct this. I can’t talk to you individually. You are
saying that it relieves—you’ve checked the box saying
that the contract excuses the contractor if he makes a
mistake. And yet you are finding against the contractor.
‘‘That is the problem. If you can handle this—I will
give it back to you one more time. If you think you can
do this in, like, two minutes, there is a correction that
needs to be made that you think you can make.
‘‘What you’ve done is, you’ve checked the box. Again,
do you understand what I am saying?’’ The record
reflects that the jury answered: ‘‘Yes,’’ and when a juror
then began to ask: ‘‘Would a corrected form—’’ the
court stated: ‘‘I can’t talk to you. All I am saying is, as
long as you understand what my problem is. If you
think you can correct it quickly, it can be corrected.
Otherwise, we are going to have to come back on Tues-
day.’’ The jury thereafter returned to the jury room.
At that juncture, counsel for the defendant moved
for a mistrial, claiming that the court had polluted the
jury, that its comments to the jury had been unfair and
prejudicial. The court denied the motion, noting that
‘‘we don’t even have a verdict yet.’’ Shortly thereafter,
the jury returned with a verdict. On the interrogatory
form that previously the jury had marked an ‘‘X’’ indicat-
ing that the defendant would not be legally liable for
errors in location of the pool that were its fault, the
jury now had crossed out the ‘‘X’’ marking with the
consequence that the answer to this interrogatory
became consistent with the damage award, and with
its other findings regarding the defendant’s negligence
and breach of contract. The court thereafter accepted
the jury’s verdict.
On appeal, our review of a court’s denial of a motion
for a mistrial focuses on whether the court abused its
discretion. As this court has stated: ‘‘The standard for
review of an action upon a motion for a mistrial is well
established. While the remedy of a mistrial is permitted
under the rules of practice, it is not favored. [A] mistrial
should be granted only as a result of some occurrence
upon the trial of such a character that it is apparent to
the court that because of it a party cannot have a fair
trial . . . and the whole proceedings are vitiated. . . .
On appeal, we hesitate to disturb a decision not to
declare a mistrial. The trial judge is the arbiter of the
many circumstances which may arise during the trial
in which his function is to assure a fair and just outcome.
. . . In [our] review of the denial of a motion for mis-
trial, [we recognize] the broad discretion that is vested
in the trial court to decide whether an occurrence at
trial has so prejudiced a party that he or she can no
longer receive a fair trial. The decision of the trial court
is therefore reversible on appeal only if there has been
an abuse of discretion. . . . In general, abuse of discre-
tion exists when a court could have chosen different
alternatives but has decided the matter so arbitrarily
as to vitiate logic, or has decided it based on improper
or irrelevant factors. . . . Therefore, [i]n those cases
in which an abuse of discretion is manifest or where
injustice appears to have been done, reversal is
required.’’ (Internal quotation marks omitted.) State v.
Holloway, 116 Conn. App. 818, 829–30, 977 A.2d 750,
cert. denied, 294 Conn. 902, 982 A.2d 646 (2009).
In the case at hand, we find no abuse of discretion.
The court returned the jury to deliberations twice, each
time because the jury had patently made a mistake. In
the first instance, the jury had answered the interrogato-
ries in a manner consistent with the court’s instructions
by twice setting forth its award of damages, broken
into component parts, as resulting from the defendant’s
breach of contract and also as flowing from the defen-
dant’s negligence. In instructing the jury, the court had
counseled the jury that in the event of a plaintiff’s ver-
dict, it should not be concerned with duplication of
damages, as the court promised it would ensure that
there was not a double award. Thus, the jury’s comple-
tion of the interrogatories was consistent with the
court’s instructions. As noted by the court, however,
the jury incorrectly filled out the plaintiffs’ verdict form
by dividing the total damages in half, attributing an
equal part each to the defendant’s negligence and to
the defendant’s breach of contract. In sending the jury
back, the court merely pointed out this inconsistency.
The court’s response to the inconsistency between the
jury’s treatment of damages in the interrogatories and
its completion of the plaintiffs’ verdict form was appro-
priate.
Furthermore, as noted by this court in Szczycinska
v. Acampora, 125 Conn. App. 474, 483–84, 10 A.3d 531
(2010), ‘‘[p]ursuant to General Statutes § 52-223, [t]he
court may, if it judges the jury has mistaken the evidence
in the action and has brought in a verdict contrary to
the evidence, or has brought in a verdict contrary to
the direction of the court in a matter of law, return
them to a second consideration, and for the same reason
may return them to a third consideration. The jury shall
not be returned for further consideration after a third
consideration. See also Practice Book § 16-17. This stat-
ute [formerly General Statutes § 1104] does not limit
the power of the trial court to return the jury to a second
or third consideration, to cases in which the verdict is,
in the opinion of the court, in favor of or against a
wrong party. A verdict in other respects correct may
be contrary to the evidence, or to the direction of the
court in a matter of law, because [it is] for too large or
too small a sum, and the provisions of this section are
applicable to such cases. . . .
‘‘While the remarks of the court to the jury in so
returning [it], either regarding the evidence or regarding
matters of law, are subject to review on appeal as a
part of the charge . . . the power given by the statute
to the court to so return the jury is largely a discretion-
ary one, the reasonable exercise of which, in the
absence of erroneous instructions to the jury in
returning [it], will not be reviewed by this court, espe-
cially when it appears that the verdict finally accepted
is not, by reason of the change made, contrary to the law
or the evidence.’’ (Citation omitted; internal quotation
marks omitted.) In a similar vein, this court has said:
‘‘[T]he [trial] court plays an essential role in supervising
the jury and in ensuring that the verdict is reasonable
and lawful. . . . The control of the court over the ver-
dict of the jury is limited but salutary.’’ (Citation omit-
ted; internal quotation marks omitted.) Pickering v.
Rankin-Carle, 103 Conn. App. 11, 18, 926 A.2d 1065
(2007).
Here, the record reveals that the court reasonably
acted within its authority. When the jury first returned
with a verdict, the court observed that the jury had
found in favor of the plaintiffs but, in completing the
verdict form, had failed to follow the court’s instruc-
tions permitting the jury to award the totality of dam-
ages for the defendant’s breach of contract and for the
defendant’s negligence. The court’s response to the jury
was explanatory and in accord with the law. Similarly,
when the jury returned with a corrected plaintiffs’ ver-
dict form, the court discovered, in reviewing the jury’s
answers to the interrogatories, that one of the answers
was legally inconsistent with a verdict for the plaintiffs
and inconsistent with all of the other answers to the
interrogatories propounded to the jury.14
A fair reading of the record reveals that each time the
court declined to accept the jury’s verdict and, instead,
returned the jury to the jury deliberation room, the
court did not dictate the outcome of the jury’s further
deliberations but, rather, pointed out the inconsisten-
cies in the jury’s verdict and interrogatory answers,
respectively, informing the jury that the verdict
amounts and interrogatory answers needed to be con-
sistent with one another and that the amount of the
verdict should be calculated in accordance with the
court’s earlier instructions. In doing so, the court acted
in a manner consistent with General Statutes § 52-223
and its corresponding Practice Book provision, § 16-17.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint, when originally filed, contained seven counts alleging:
(1) breach of contract; (2) breach of warranty; (3) negligence; (4) innocent
misrepresentation; (5) breach of the duty of good faith and fair dealing; and
(7) a violation of the Connecticut Unfair Trade Practices Act, General Stat-
utes § 42-110a et seq. On the eve of trial, the plaintiffs withdrew all but the
breach of contract and negligence counts.
2
Whether the tissue sketch was actually given to the defendant and
whether, if so, it provided a reasonable basis for the defendant to situate
the pool were significantly contested issues at trial. The defendant claimed
that in reliance on the sketch, it placed stakes to show the intended location
of the pool and that Castelli, on behalf of the plaintiffs, approved the pro-
posed location. The plaintiffs, on the other hand, claimed that the sketch
was not given to the defendant and, at any rate, that it was only a rough sketch
that included no dimensions or specific designation for the pool’s location.
3
This testimony was contested by the defendant, thereby setting up a
core factual dispute for the jury’s determination.
4
After the court answered the jury question in this manner, the only issue
raised by the defendant was that the jury might have confused the court’s
instruction to ignore the language of the indemnification and hold harmless
sentence with the provision of the previous sentence regarding responsibility
for the placement of the pool. Nevertheless, because the defendant had filed
a written request to charge on the subject of the ‘‘exculpatory’’ paragraph
of the agreement, we review this claim on appeal. See State v. Johnson,
316 Conn. 45, 54, 111 A.3d 436 (2015) (‘‘[w]e never have required . . . a
defendant who has submitted a request to charge also to take an exception
to a contrary charge, and such a requirement would contravene the plain
language of [Practice Book § 42-16]’’ [internal quotation marks omitted]).
5
General Statutes § 52-572k provides in relevant part: ‘‘(a) Any covenant,
promise, agreement or understanding entered into in connection with or
collateral to a contract or agreement relative to the construction, alteration,
repair or maintenance of any building, structure or appurtenances thereto
including moving, demolition and excavating connected therewith, that pur-
ports to indemnify or hold harmless the promisee against liability for dam-
ages arising out of bodily injury to persons or damage to property caused
by or resulting from the negligence of such promisee, such promisee’s agents
or employees, is against public policy and void, provided this section shall
not affect the validity of any insurance contract, workers’ compensation
agreement or other agreement issued by a licensed insurer. . . .’’
6
Because neither party asked the court to articulate the basis on which
the court charged this particular provision out of the case, we look to the
record to determine if there was a reasonable basis for the court’s action.
7
In their brief, the plaintiffs asserted that the court found the language
of the indemnification clause to be ambiguous. It did not. In its instructions
to the jury, the court carefully separated the first and second sentences of
this paragraph. The record plainly reveals that the court instructed the jury
that the language of the first sentence regarding the direction of the location
of the pool is ambiguous. The court made no such finding and it gave no
such instruction regarding the indemnification and hold harmless provision.
8
In conjunction with their application for a prejudgment remedy, the
plaintiffs attached a proposed multicount complaint. At the hearing, how-
ever, the court found that the plaintiffs had adduced evidence in support
of only their breach of contract and negligence claims.
9
The record reflects that Iacono is a principal of the defendant corpo-
ration.
10
Notably, the plaintiffs made no claims at trial that the defendant was
negligent in the manner of construction of the pool. That is, the defendant’s
expertise as a pool builder, if that is an area of expertise, was not called
into question at trial.
11
As noted previously, whether the plot plan was actually given to the
defendant by Castelli was a core disputed issue at trial. The jury, of course,
was entitled to credit evidence that the defendant was in possession of the
plot plan.
12
In response to this claim, the plaintiffs assert that the court correctly
denied the defendant’s motion for a directed verdict concerning the exculpa-
tory language because application of such language to these facts would
have violated § 52-572k. The defendant responds that the provisions of
§ 52-572k are inapplicable to the facts at hand because the statute voids
indemnification and hold harmless provisions only when applied to claims
for bodily injury or property damages, claims absent from this litigation.
We do not need to assess the reach of § 52-572k in this appeal because we
agree with the trial court’s determination that its provisions are not applica-
ble to this dispute between the contracting parties. See part I B of this
opinion.
13
Our review of the record reveals that on page 3 of the interrogatory
form, the jury entered the amount of $62,142.86 as damages due to the
defendant’s breach of contract. On page 5 of the interrogatory form, where
the jury was asked to indicate an award for damages based on the defendant’s
negligence, the jury indicated: ‘‘See page 3.’’ A fair reading of these answers
is that the jury arrived at an award of $62,142.86 for the defendant’s breach
of contract and a like amount for the defendant’s negligence. On the plaintiffs’
verdict form, however, the jury indicated an award of $31,071.43 for the
defendant’s breach of contract and the same amount for the defendant’s
negligence, amounts exactly half the total damages it assessed.
14
A review of the interrogatory answers reveals, as well, that all of the
other answers were consistent with the jury’s verdict. As to the contract
claims, the jury found that the ‘‘exculpatory’’ language did not relieve the
defendant of its legal responsibility regarding the location of the pool and
that the installation of the pool at a location that violated the town zoning
regulations was the defendant’s fault. The jury found that the plaintiffs
established that the defendant breached the contract by improperly locating
the pool and that the plaintiffs substantially performed all of their obligations
under the contract. The jury found that the plaintiffs suffered economic
damages resulting from the defendant’s breach of contract in the total
amount of $62,142.86. As to the negligence claim, the jury found that the
plaintiffs proved that the defendant negligently installed the pool in a location
that violated the town’s zoning regulations and that this negligence was the
proximate cause of the economic damages suffered by the plaintiffs. In the
blank space provided for the jury to indicate the amount of the damages
caused by the defendant’s negligence, the jury simply referred to its calcula-
tion for contract damages.